Follow-up Report on Improving the Security
of the Transit Without Visa ProgramReport No. I-2002-005
December 2001

RESULTS OF THE REVIEW

We found that, for the most part, the security concerns identified by the original OIG report in 1993 still exist today. These security concerns included allowing multiple in-transit stops for TWOV passengers without procedures to ensure departure from the United States; inadequate supervision of TWOV passengers to ensure they depart the United States; INS's inability to verify departure of TWOV passengers; and inadequate ITL security to prevent passengers from absconding from the ITL.

Since the original OIG report was issued, the INS has taken some steps to improve management and oversight of the program. The INS appointed a TWOV program manager to oversee the TWOV program and incorporated TWOV procedures into the Inspector's Field Manual. The INS has also cancelled TWOV agreements with two carriers because of their poor record of adhering to the TWOV requirements.

Following the events of September 11, 2001, the INS suspended the ITL program. On November 21, 2001, the INS resumed ITL operations with restrictions. These restriction included airline submission of 100% Advance Passenger Information System data, query of all passengers through the Interagency Border Information System, 2 INS confirmation of the passengers' identities, and escort of the passengers to and from the aircraft and ITLs. The INS has the option of requiring all passengers and crew to undergo a full inspection. The identify check represents a security enhancement as this check was conducted randomly in the past.

Multiple In-Transit Stops

TWOV passengers are permitted to make two stops within the United States before taking connecting flights out of the country. Allowing the TWOV passengers a second stop presents a security concern.

At the time of the original OIG review, the INS favored limiting TWOV visitors to a single stop in the United States. This change would not require action by Congress. However, the INS told the OIG that it was unable to limit TWOV visitors to a single stop, or make other desired changes in the TWOV agreement, until a lawsuit against the INS brought by the airline trade associations was resolved. The lawsuit, filed in 1992, concerned responsibility for detention costs for aliens entering as TWOVs who did not leave the United States within a few hours. After the INS lost the lawsuit in 1996, additional legal issues continued to delay INS action to limit TWOV passengers to a single stop, according to INS officials. These additional issues concerned airline liability and appropriate supervision by the INS for aliens refused entry to their destined country or if other conditions affected their status. The INS Office of Inspections requested legal opinions on these issues from its General Counsel, initially in 1995, before attempting to amend the TWOV agreements. These issues still have not been resolved and the agreements remain unchanged.

The Assistant Director, Facilitation Services, IATA, told us that the airline industry favors the elimination of multiple stops because they pose significant administrative burdens for the airlines. We could not reconcile why the INS continues to delay implementing the one-stop requirement, given the airline industry's apparent support for the concept. Even though the original OIG report was issued nearly ten years ago, the INS has not yet limited TWOV passengers to a single stop in the United States, which would have distinct security advantages.

In-Transit Passenger Supervision

The airline's lack of standards and accountability for supervising TWOV passengers waiting for connecting flights presents a security concern because the INS cannot determine if an alien has departed or absconded. Under the TWOV agreements, the airlines are responsible for ensuring that passengers depart from the United States within the appropriate time limit. TWOV passengers who pass through INS inspections and are admitted into the country enter the main airport areas and mix with other airport passengers.

To try to ensure that TWOV passengers leave the United States, the airlines generally employ contract guards to escort transit passengers throughout their stay. But during our follow-up review, INS port managers said that the degree of control exercised by different airlines varies, from having guards escort passengers throughout transit, to allowing passengers to move about he airport on their own. INS port managers further stated that some airlines are willing to absorb the $500 damages as the cost of doing business if departure I-94Ts are not received, finding this cost cheaper than providing better security. Some airlines provide a one-to-one guard-to-transit passenger ratio if passengers must leave the airport for overnight stays at a hotel or to transfer to another airport. Others do not. In public waiting areas outside the Federal Inspections Services (FIS) area, the guard-to-transit passenger ratio varies. For some airlines, the ratio is 5-to-1, while for others it may be as high as 20-to-1.

Verification of In-Transit Passenger Departure

The INS cannot always verify that TWOV passengers depart the United States as required. This presents a security concern because the INS cannot determine if an alien has departed or absconded. Proof that TWOV passengers have departed consists of the INS matching the arrival portion of the I-94T forms with the departure portion. If a match occurs, the assumption is made that the TWOV passenger has departed. If there is no match, the opposite assumption - that the passenger has failed to depart - is made. In such a case, the INS issues a Notice of Intention to assess a liquidated damage against the airline. The airline is given a period of time to refute the INS charges by presenting documentation that shows the passenger has departed. If the airline is unable to do so, the INS issues a liquidated damage. 3 Yet, we found that issuing a liquidated damage has a minimal effect on the airlines ensuring that TWOV passengers depart or preventing aliens from absconding.

In FY 1999 and FY 2000, airlines provided evidence of departure in more than 80 percent of the cases where TWOV passengers initially appeared to have failed to depart (10,169 and 12,479 respectively). This error rate is not surprising given that we found similar documentation problems in earlier OIG reports. 4 Damages were imposed in the remaining 20 percent, or 1,791 and 2,242 cases respectively, in the two fiscal years. INS program managers said that more TWOVs may have actually departed the United States than these numbers would indicate because departure I-94Ts may not have been returned to the INS. Airlines frequently do not retain departure manifests or other records and they may not be able to document a passenger's departure by the time the issue arises. Frequently, TWOV passengers depart on airlines different than those they arrived on and the departing airlines have no incentive to provide the documentation.

On the other hand, a match of arrival and departure portions of I-94Ts does not absolutely guarantee that departure has occurred because someone other than the TWOV passenger may have turned in the departure form. In some cases, airline guards have been charged with accepting bribes to stamp and return I-94s.

Security of In-Transit Lounges

The ITLs present two security problems. First, the passengers who enter the ITL are not fully inspected and this eliminates an important security measure. While the ITL passengers may have valid documentation, law enforcement authorities may have interest in them because of suspected criminal or terrorist activity. The inspection process may detect this law enforcement interest and prevent their entry into the United States. Also, if the passengers are not inspected, there is no record of their arrival in the United States or their eventual departure. The second security issue is that if the ITLs are not properly supervised, passengers can abscond without the INS having record of their arrival in the United States.

INS port officials do not favor ITLs because passengers are not fully inspected and believe that the airlines do not provide sufficient security for ITLs. The supervision of the ITLs is the responsibility of the airport operator. Some airlines may enter into specific agreements with the airport operators to provide this supervision. During our follow-up review, INS port managers told the OIG that some locations do not provide guards to secure the ITL areas. If a passenger leaves the ITL, the airlines would be responsible for notifying the INS. According to an INS Headquarters program manager, the airlines have never reported passengers absconding from the ITLs to the INS.

The Assistant Director, Facilitation Services, IATA, told us that the airlines would prefer that all TWOV passengers be required to remain in a secure area while waiting for their connecting flights. The current practice allows inspected TWOV passengers to enter the public areas of the airport to await their connecting flights. According to the airline industry official, requiring all TWOV passengers to remain in an ITL to await their connecting flights is far more secure than the current practice. However, since there are 47 TWOV ports of entry and only 19 of these have ITLs, this procedure would not be viable at all ports of entry.

Terminating the Transit Without Visa Program

INS officials told the OIG that they are reviewing all aspects of the TWOV program. Because of security concerns, some INS headquarters and field managers told the OIG that they would prefer to terminate the TWOV program. They believe such transit is no longer necessary, certainly not for its original humanitarian purpose, and that vastly increased flight and fuel capabilities have further rendered it obsolete.

IATA and ATA officials told us that the Department of State does not have the capacity to issue the number of visas that would be required if all foreign passengers participating in the TWOV program were required to obtain U.S. visas. Further, they said obtaining a visa is time consuming, costly, and often inconvenient to the traveler. The officials cited Mexican citizens, who make up a significant number of the TWOV passengers, as an example. They would have to travel to a U.S. consulate, present their documents, pay a fee, and wait several days before obtaining visas. The air transportation officials believe most travelers would not submit to the visa application process. Instead, they either will not travel or will use a foreign airline to bypass the United States, thereby resulting in a loss of business for U.S. airlines. The air transportation officials estimate that if the TWOV program were eliminated, the number of passengers transiting through the United States would drop by 40 percent, and U.S. airlines would lose millions of dollars annually.

Reaction to the Events of September 11, 2001

As previously discussed, the INS suspended the use of ITLs after September 11, 2001 and resumed restricted ITL operations on November 21, 2001. The INS port director at the Miami International Airport has adopted an innovative interim security practice. All TWOV passengers - including those who would normally be sent to the ITL - are sent through primary inspection and then to a secure area to await their connecting flights. They are not free to enter the public areas of the airport as TWOV passengers were routinely permitted to do. According to Miami port managers, use of the ITLs to hold passengers after inspection represents an improvement in security. One airline official said that this practice assisted them in preventing TWOV passengers from leaving the area. The airline official also said that the INS in Miami had placed further restrictions on use of the TWOV program, including limits on the number of TWOV passengers allowed on each flight.

Footnotes

This system queries the passenger's name and passport number against a lookout database.

The technical terminology that describes this action is that "the INS bills the airline for liquidated damages." The damages are intended to repay the INS for the costs incurred in locating and removing the TWOV passengers who have absconded. It is technically not a fine. However, the INS may also fine an airline for violations of the Immigration and Naturalization Act.

A similar documentation problem was identified in the September 1997 OIG report, Immigration and Naturalization Service Monitoring of Nonimmigrant Overstays. This report reviewed the INS's ability to positively verify departure of non-immigrants. We reported that airlines were not submitting to the INS complete and accurate departure information on a substantial number of the form I-94, Arrival/Departure Records. This prevented the INS from being able to match arrival and departure records and verify passenger departure. In that review, we found instances of incomplete data, data entry errors, and duplicate records. See also the OIG report, Automated I-94 System, Report No. 01-18, issued in August 2001.